Tag: information

Shades of Warning: What It Means to Inform

Ben Friedman helpfully supplies more information to go with my positive reaction to the Department of Homeland Security’s decision to scrap color-coded threat warnings.

Our colloquy leaves somewhat open what should replace color-coding. Because most threat warnings are false alarms, and because exhortations to vigilance will tend toward the vagueness of the color-coding system, Ben hopes “DHS winds up being tighter-lipped.”

His points are good ones, but they don’t dissuade me from my belief that DHS should “begin informing the public fully about threats and risks known to the U.S. government.”

The right answer here centers on who is better at digesting threat information—experts in the national security bureaucracy or the public?

There is a great deal of expertise in the U.S. government focused on turning up threat information and digesting it for policymakers. However, that expertise has limits, often manifested as threat inflation, as Ben notes, and as myopia. Daniel Patrick Moynihan’s Secrecy: The American Experience illustrates the latter well (especially the edition with Richard Gid Powers’ fine introduction).

The public consists of hundreds of millions of subject matter experts in every walk of life. They include owners and operators of all our infrastructure, reporters and commentators in the professional and amateur press, academics, state and local law enforcement personnel, information networks, and social networks of all kinds. We have security-interested folk in the hundreds of millions spread out across the land, all in regular communication with each other. We’re a tremendously powerful information processing machine. I believe this public can do a better job of digesting threat information than “experts,” particularly when it comes to terrorism threats, which can—theoretically, at least—manifest themselves pretty much anywhere.

The public constantly digests risk and threat information from other walks of life. We digest information about ordinary crime, health and disease, finance and investment, driving and walking, etc., etc. There is nothing about terrorism that disables the public from making judgments about threat information and incorporating it into daily life. People can figure out what matters and what does not, and they can apply information in the spheres they know.

When I say “fully inform,” I don’t argue for broadcasting every speck of information the U.S. government collects. There are limited domains in which information sharing will reveal sources and methods, undercutting access to future information. Appropriate caveats are part of ”fully” informing, of course. Natural pressure will cause too speculative threats to be winnowed from public release. But even opening a firehose will get people the water they need to drink.

Tight lips sink ships. The presumption should fall in favor of sharing information with the public. After a period of adjustment lasting from months to a year or more, the American information system would incorporate open threat information into daily life, and the country would be more secure. People made confident by the ability to consume and respond to threat information will feel more secure, which is the other half of what security is all about.

Patriot Act Update

It looks as though we’ll be getting a straight one-year reauthorization of the expiring provisions of the Patriot Act, without even the minimal added safeguards for privacy and civil liberties that had been proposed in the Senate’s watered down bill.  This is disappointing, but was also eminently predictable: Between health care and the economy, it was clear Congress wasn’t going to make time for any real debate on substantive reform of surveillance law. Still, the fact that the reauthorization is only for one year suggests that the reformers plan to give it another go—though, in all probability, we won’t see any action on this until after the midterm elections.

The silver lining here is that this creates a bit of breathing room, and means legislators may now have a chance to take account of the absolutely damning Inspector General’s report that found that the FBI repeatedly and systematically broke the law by exceeding its authorization to gather information about people’s telecommunications activities. It also means the debate need not be contaminated by the panic over the Fort Hood shootings or the failed Christmas bombing—neither of which have anything whatever to do with the specific provisions at issue here, but both of which would have doubtless been invoked ad nauseam anyway.

Surveillance, Security, and the Google Breach

Yesterday’s bombshell announcement that Google is prepared to pull out of China rather than continuing to cooperate with government Web censorship was precipitated by a series of attacks on Google servers seeking information about the accounts of Chinese dissidents.  One thing that leaped out at me from the announcement was the claim that the breach “was limited to account information (such as the date the account was created) and subject line, rather than the content of emails themselves.” That piqued my interest because it’s precisely the kind of information that law enforcement is able to obtain via court order, and I was hard-pressed to think of other reasons they’d have segregated access to user account and header information.  And as Macworld reports, that’s precisely where the attackers got in:

That’s because they apparently were able to access a system used to help Google comply with search warrants by providing data on Google users, said a source familiar with the situation, who spoke on condition of anonymity because he was not authorized to speak with the press.

This is hardly the first time telecom surveillance architecture designed for law enforcement use has been exploited by hackers. In 2005, it was discovered that Greece’s largest cellular network had been compromised by an outside adversary. Software intended to facilitate legal wiretaps had been switched on and hijacked by an unknown attacker, who used it to spy on the conversations of over 100 Greek VIPs, including the prime minister.

As an eminent group of security experts argued in 2008, the trend toward building surveillance capability into telecommunications architecture amounts to a breach-by-design, and a serious security risk. As the volume of requests from law enforcement at all levels grows, the compliance burdens on telcoms grow also—making it increasingly tempting to create automated portals to permit access to user information with minimal human intervention.

The problem of volume is front and center in a leaked recording released last month, in which Sprint’s head of legal compliance revealed that their automated system had processed 8 million requests for GPS location data in the span of a year, noting that it would have been impossible to manually serve that level of law enforcement traffic.  Less remarked on, though, was Taylor’s speculation that someone who downloaded a phony warrant form and submitted it to a random telecom would have a good chance of getting a response—and one assumes he’d know if anyone would.

The irony here is that, while we’re accustomed to talking about the tension between privacy and security—to the point where it sometimes seems like people think greater invasion of privacy ipso facto yields greater security—one of the most serious and least discussed problems with built-in surveillance is the security risk it creates.

Use Your Law Deferment to Work for Liberty!

Many law firms are asking their incoming first-year associates to defer their start dates (from a few months to a full year) and are offering stipends to these deferred associates to work at public interest organizations. Cato has been running a deferred associates program for the last few months and we are now extending it for as long as top-notch candidates want to ride out the economy with us.

The Cato Institute invites third-year law students and others facing firm deferrals to apply to work at our Center for Constitutional Studies. This is an opportunity to assist projects ranging from Supreme Court amicus briefs to policy papers to the Cato Supreme Court Review. Start and end dates are flexible. Interested students and graduates should email a cover letter, resume, transcript, and writing sample, along with any specific details of their deferment (timing, availability of stipend, etc.) to Jonathan Blanks at jblanks [at] cato [dot] org.

Please feel free to pass the above information to your friends and colleagues. For information on Cato’s programs for non-graduating students, contact Joey Coon at jcoon [at] cato [dot] org (jcoon [at] cato [dot] org.)

Lying and the Federal Government

Speaking of White House gate-crashers Tareq and Michaele Salahi (as we were trying to think of an excuse to do, to increase blog traffic), Slate says they might be guilty of a federal crime. What crime? Well, possibly trespassing on federal property. Or maybe the “broad prohibition on lying to the federal government.” Title 18, section 1001 of the U.S. Code

can be used to prosecute anyone who “knowingly and willfully … falsifies, conceals, or covers up by any trick, scheme, or device a material fact” or “makes any materially false, fictitious, or fraudulent statement or representation” to the government. That could include lying about your arrest record on a government job application, claiming a fake deduction on your taxes, or telling someone you’re on the White House invite list when you’re not.

I can’t help wondering, is there any equally broad prohibition on lying by the federal government? If the federal government, or a federal agency, or a federal official “knowingly and willfully … falsifies, conceals, or covers up” information or “makes any materially false, fictitious, or fraudulent statement or representation” – about the costs of a new entitlement, or how a candidate for reelection will act in his next term, or case for going to war – is that prohibited? Or are the rules tougher on the ruled than the rulers?

Three Keys to Surveillance Success: Location, Location, Location

The invaluable Chris Soghoian has posted some illuminating—and sobering—information on the scope of surveillance being carried out with the assistance of telecommunications providers.  The entire panel discussion from this year’s ISS World surveillance conference is well worth listening to in full, but surely the most striking item is a direct quotation from Sprint’s head of electronic surveillance:

[M]y major concern is the volume of requests. We have a lot of things that are automated but that’s just scratching the surface. One of the things, like with our GPS tool. We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy, so, just the sheer volume of requests they anticipate us automating other features, and I just don’t know how we’ll handle the millions and millions of requests that are going to come in.

To be clear, that doesn’t mean they are giving law enforcement geolocation data on 8 million people. He’s talking about the wonderful automated backend Sprint runs for law enforcement, LSite, which allows investigators to rapidly retrieve information directly, without the burden of having to get a human being to respond to every specific request for data.  Rather, says Sprint, each of those 8 million requests represents a time when an FBI computer or agent pulled up a target’s location data using their portal or API. (I don’t think you can Tweet subpoenas yet.)  For an investigation whose targets are under ongoing realtime surveillance over a period of weeks or months, that could very well add up to hundreds or thousands of requests for a few individuals. So those 8 million data requests, according to a Sprint representative in the comments, actually “only” represent “several thousand” discrete cases.

As Kevin Bankston argues, that’s not entirely comforting. The Justice Department, Soghoian points out, is badly delinquent in reporting on its use of pen/trap orders, which are generally used to track communications routing information like phone numbers and IP addresses, but are likely to be increasingly used for location tracking. And recent changes in the law may have made it easier for intelligence agencies to turn cell phones into tracking devices.  In the criminal context, the legal process for getting geolocation information depends on a variety of things—different districts have come up with different standards, and it matters whether investigators want historical records about a subject or ongoing access to location info in real time. Some courts have ruled that a full-blown warrant is required in some circumstances, in other cases a “hybrid” order consisting of a pen/trap order and a 2703(d) order. But a passage from an Inspector General’s report suggests that the 2005 PATRIOT reauthorization may have made it easier to obtain location data:

After passage of the Reauthorization Act on March 9, 2006, combination orders became unnecessary for subscriber information and [REDACTED PHRASE]. Section 128 of the Reauthorization Act amended the FISA statute to authorize subscriber information to be provided in response to a pen register/trap and trace order. Therefore, combination orders for subscriber information were no longer necessary. In addition, OIPR determined that substantive amendments to the statute undermined the legal basis for which OIPR had received authorization [REDACTED PHRASE] from the FISA Court. Therefore, OIPR decided not to request [REDACTED PHRASE] pursuant to Section 215 until it re-briefed the issue for the FISA Court. As a result, in 2006 combination orders were submitted to the FISA Court only from January 1, 2006, through March 8, 2006.

The new statutory language permits FISA pen/traps to get more information than is allowed under a traditional criminal pen/trap, with a lower standard of review, including “any temporarily assigned network address or associated routing or transmission information.” Bear in mind that it would have made sense to rely on a 215 order only if the information sought was more extensive than what could be obtained using a National Security Letter, which requires no judicial approval. That makes it quite likely that it’s become legally easier to transform a cell phone into a tracking device even as providers are making it point-and-click simple to log into their servers and submit automated location queries.  So it’s become much more  urgent that the Justice Department start living up to its obligation to start telling us how often they’re using these souped-up pen/traps, and how many people are affected.  In congressional debates, pen/trap orders are invariably mischaracterized as minimally intrusive, providing little more than the list of times and phone numbers they produced 30 years ago.  If they’re turning into a plug-and-play solution for lojacking the population, Americans ought to know about it.

If you’re interested enough in this stuff to have made it through that discussion, incidentally, come check out our debate at Cato this afternoon, either in the flesh or via webcast. There will be a simultaneous “tweetchat” hosted by the folks at Get FISA Right.

Geithner Ignores Bailout History

Perhaps the biggest problem with the Obama plan to “reform” our financial system is the impact it would have on the market perception surrounding “too big to fail” institutions.  In identifying some companies as “too big to fail” holders of debt in those companies would assume that they would be made whole if those companies failed.  After all, that is what we did for the debt-holders in Fannie, Freddie, AIG, and Bear.  Both former Secretary Paulson and Geithner appear under the impression that moral hazard only applies to equity, despite debt constituting more than 90% of the capital structure of the typical financial firm.

Geithner believes he’s found a way to solve this problem - he’ll just tell everyone that there isn’t an implicit subsidy, and there won’t be a list of “too big to fail” companies.  Great, why didn’t I think of that.  After all, the constant refrain in Washington over the years that Fannie and Freddie weren’t getting an implicit subsidy really prepared the markets for their demise.

Even more bizarre is Geithner’s assertion that the government can force these institutions to hold higher capital, maintain more liquidity and be subjected to greater supervision, all without anyone knowing who exactly these companies are.  Does the Secretary truly believe that these companies’ securities disclosures won’t include the amount of capital they are holding?  Whether there is an official list or not is besides the question, market participants will be able to infer that list from publicly available information and the actions of regulators. 

One has to wonder whether Geithner spent any of his time at the NY Fed actually watching how markets work.  Before we continue down the path of financial reform, maybe it would be useful for our Treasury Secretary to take a few weeks off to study what got us into this mess.  We’ve already been down this road of denying implicit subsidies and then providing them after the fact. Maybe it’s time to try something different.